Last updated: December 1st, 2021
By accessing or using the Websites or any of the content on the Websites you agree to be legally bound by these Terms. If you do not accept these Terms, do not use the Websites or any of its Content (defined below).
You represent to Smarketing Cloud that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into these Terms for an entity, such as the company you work for, you represent that you have authority to bind that entity and you agree that “you” as used in these Terms includes both you personally and the entity you represent.
You and Smarketing Cloud are collectively referred to as the “Parties” and each is a “Party”.
- Smarketing Cloud Content. The Websites contain HTML, applications, messages, text, files, images, photos, video, sounds, profiles, works of authorship and other content (collectively, “Content”) of Smarketing Cloud or its licensors (“Smarketing Cloud Content”). The Websites (including the Smarketing Cloud Content) are protected by copyright, trademark, trade secret and other laws; and as between you and Smarketing Cloud, Smarketing Cloud owns and retains all rights in the Websites and the Smarketing Cloud Content. Smarketing Cloud hereby grants to you a limited, revocable, non-sublicensable license to access, display and perform the Smarketing Cloud Content (excluding any computer code) solely for your personal, non-commercial use and solely as necessary to access and use the Websites. Except as expressly permitted by Smarketing Cloud in these Terms or on the Websites, you may not copy, download, stream, capture, reproduce, duplicate, archive, upload, modify, translate, create derivative works based upon, publish, broadcast, transmit, retransmit, distribute, perform, display, sell or otherwise use or transfer any Smarketing Cloud Content. You may not, either directly or through the use of any device, software, online resource or other means, remove, alter, bypass, avoid, interfere with or circumvent any copyright, trademark or other proprietary notice on the Smarketing Cloud Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Smarketing Cloud Content.
- Trademarks. The trademarks, logos and service marks (“Marks”) displayed on the Websites are the property of Smarketing Cloud or other third parties. You are not permitted to use these Marks without the prior written consent of Smarketing Cloud or such third party.
- Third-Party Services. The Websites may make available, or third parties may provide, links to other websites, applications, resources, advertisements, Content or other products or services created, hosted or made available by third parties (“Third-Party Services”), and such third parties may use other third parties to provide portions of the Third-Party Service to you, such as technology, development or payment services. When you access or use a Third-Party Service, you are interacting with the applicable third party, not with Smarketing Cloud, and you do so at your own risk. Smarketing Cloud is not responsible for, and makes no warranties, express or implied, as to, the Third-Party Services or the providers of such Third-Party Services (including without limitation the accuracy or completeness of the information provided by such Third-Party Service or the privacy practices of any third party). Inclusion of any Third-Party Service or a link thereto on the Websites does not imply approval or endorsement of such Third-Party Service. Smarketing Cloud is not responsible or liable for the Content or practices of any Third-Party Service or third party, even if such Third-Party Service links to, or is linked by, the Websites.
- Compliance with Laws. You represent that, in agreeing to, and performing under, these Terms, you are not violating, and will not violate, any governmental laws, rules, regulations or orders that are applicable to your use of the Websites (“Applicable Laws”). Without limiting the foregoing, you represent that, in connection with your performance under these Terms, you shall: (a) comply with Applicable Laws relating to anti-bribery and anti-corruption, which may include the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010; (b) comply with Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”); and (c) not directly or indirectly export, re-export or otherwise deliver any Smarketing Cloud software, content or services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. You represent that you are not a Sanctions Target or prohibited from receiving Smarketing Cloud software, content or services pursuant to these Terms under Applicable Laws, including Export Laws.
- Global Availability. Smarketing Cloud controls the Websites from its New York, NY, USA offices. If you use this website from other locations, you are responsible for compliance with local Applicable Laws. Smarketing Cloud makes no representation that the products and services referenced herein are appropriate, or available, worldwide.
- Indemnity. You agree to defend, indemnify and hold harmless Smarketing Cloud, its affiliates and their respective employees, contractors, agents, officers and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt or expenses (including without limitation attorneys’ fees) arising out of or related to any claim, suit, action or proceeding by a third party arising out of or relating to your use of the Websites, breach of these Terms (including any Smarketing Cloud policy referenced in these Terms), violation of law, or any Content that you post, upload or cause to interface with the Websites, or otherwise transfer, process, use or store in connection with the Websites.
- Disclaimers. THE WEBSITES AND ALL CONTENT AND OTHER ITEMS MADE AVAILABLE BY Smarketing Cloud ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Smarketing Cloud ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES OR INACCURACIES OF DATA OR INFORMATION POSTED, DISPLAYED, PUBLISHED OR MADE AVAILABLE FOR DOWNLOAD OR USE ON THE SITE, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USE OF THE SITE, (iii) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, OR (iv) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY NOT UNDER Smarketing Cloud’S CONTROL.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT SHALL Smarketing Cloud, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THE SITE; AND (b) IN NO EVENT SHALL Smarketing Cloud’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THESE TERMS EXCEED $100 U.S. DOLLARS. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- Responsibility for End Users. You are responsible for violations of these Terms by anyone using the Websites with your permission or using your account on an unauthorized basis. Your use of the Websites to assist another person in an activity that would violate these Terms if performed by you is a violation of these Terms. These Terms applies to anyone accessing or using the Websites; however, each provision in these Terms shall be interpreted to include, and apply to, any action directly or indirectly taken, authorized, facilitated, promoted, encouraged or permitted by a user of the Websites, even if such person did not themselves violate the provision.
- Digital Millennium Copyright Act
- The Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any material residing on or linked to from the Websites infringes your copyright, please send (or have your agent send) to Smarketing Cloud’s Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit Smarketing Cloud to locate the material on the Websites (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit Smarketing Cloud to contact you, including an address, telephone number and, if available, an email address; (d) the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law”; (e) the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; and (f) your physical or electronic signature.
- To file a counter notification with Smarketing Cloud, please provide the following information to Smarketing Cloud’s Copyright Agent: (a) a description of the material that Smarketing Cloud has removed or to which Smarketing Cloud has disabled access; (b) information reasonably sufficient to permit Smarketing Cloud to contact you, including an address, telephone number and, if available, an email address, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or the Southern District of New York if your address is outside of the United States), and that you will accept service of process from the person who provided notification of infringement or an agent of such person; (c) the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled”; and (d) your physical or electronic signature.
- Smarketing Cloud’s Copyright Agent for notification of claimed infringement can be reached as follows: Copyright Agent, Smarketing Cloud, Inc., Attn: Legal, 9 Castleview Park, Swords, Dublin, Ireland. Smarketing Cloud’s Copyright Agent for notification of claimed infringement can also be reached electronically at: [email protected]. Smarketing Cloud reserves the right to terminate infringers’ and suspected infringers’ access to or use of the Websites.
- Termination and Monitoring.
- We may terminate or suspend these Terms at any time without notice to you. Without limiting the foregoing, we shall have the right to immediately terminate your access to the Websites in the event of any conduct by you which we, in our sole discretion, consider to be unacceptable, or if you breach these Terms. Smarketing Cloud’s right to suspend or terminate your use of Websites applies even if a breach is committed unintentionally or without your authorization if Smarketing Cloud believes that suspension or termination is necessary to ensure compliance with Applicable Laws or to protect the rights, safety, privacy, security or property of Smarketing Cloud, its customers or third parties. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, the ownership provisions, Indemnity, Disclaimers and Limitations of Liability.
- Smarketing Cloud reserves the right, but does not assume the obligation, to investigate any violation of these Terms or misuse of the Websites. Smarketing Cloud has the right in its sole discretion to edit, refuse to post or remove any Content posted, displayed, published or made available for download or use on the Websites that Smarketing Cloud finds to be in violation of these Terms. Smarketing Cloud may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Such reporting may include disclosing appropriate customer data. Smarketing Cloud also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations.
- Electronic Communications. When you visit the Websites or send emails to Smarketing Cloud, you are communicating with Smarketing Cloud electronically; and you consent to receive communications from Smarketing Cloud electronically. Smarketing Cloud will communicate with you by email or by posting notices on the Websites. You agree that all agreements, notices, disclosures and other communications that Smarketing Cloud provides to you electronically satisfy any legal requirement that such communications be in writing.
- Modifications. Smarketing Cloud may modify these Terms at any time by posting a revised version on the Websites. By accessing the Websites, you agree to the latest version of these Terms.
- Miscellaneous. These Terms constitute the complete and exclusive statement of the agreement between the Parties and supersede all proposals, oral or written, and all other communications between the Parties relating to the subject matter of these Terms. In the event any information posted on the Websites from time to time conflicts with any provision of these Terms, the applicable provision of these Terms shall control. Any terms and conditions of any other instrument issued by you in connection with these Terms which are in addition to, inconsistent with or different from these Terms shall be of no force or effect. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Smarketing Cloud. You may not assign, transfer or sublicense all or any of your rights or obligations under these Terms without Smarketing Cloud’s express prior written consent. Smarketing Cloud may assign, transfer or sublicense all or any of Smarketing Cloud’s rights or obligations under these Terms without restriction. The failure of Smarketing Cloud to exercise or enforce any condition, term or provision of these Terms will not operate as a waiver of such condition, term or provision. Any waiver by Smarketing Cloud of any condition, term or provision of these Terms shall not be construed as a waiver of any other condition, term or provision. If any provision of these Terms is held invalid or unenforceable, the remainder of these Terms shall continue in full force and effect. You agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Smarketing Cloud will not be responsible for failures to fulfill any obligations due to causes beyond its control. Non-English translations of these Terms are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
Information Collection And Use
While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you. Personally identifiable information (“Personal Information”) may include, but is not limited to:
- Email address
- Telephone number
We collect information that your browser sends whenever you visit our Service (“Log Data”). This Log Data may include information such as your computer’s Internet Protocol (“IP”) address, browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages and other statistics.
Cookies are files with small amount of data, which may include an anonymous unique identifier. Cookies are sent to your browser from a web site and stored on your computer’s hard drive.
We use “cookies” to collect information. You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Service.
We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services or to assist us in analyzing how our Service is used.
These third parties have access to your Personal Information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.
The security of your Personal Information is important to us, but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security.
Links To Other Sites
We have no control over, and assume no responsibility for the content, privacy policies or practices of any third party sites or services.
Our Service does not address anyone under the age of 18 (“Children”).
We do not knowingly collect personally identifiable information from children under 18. If you are a parent or guardian and you are aware that your child has provided us with Personal Information, please contact us. If we discover that a child under 18 has provided us with Personal Information, we will delete such information from our servers immediately.